Earlier today on 9th July 2021, Friday, WhatsApp Messenger told the Hon’ble Delhi High Court that it would delay enforcing its amended privacy policies until the Personal Data Protection Bill comes into effect. Senior advocate Harish Salve, appearing for WhatsApp and Facebook, informed the high court that the new privacy regulations had been put on hold.
Senior Advocate Harish Salve presented the statement on behalf of WhatsApp today in front of a Hon’ble Bench consisting of Hon’ble Chief Justice DN Patel and Justice Jyoti Singh.
“The government has requested that the policy should be terminated. We have stated that we will not enforce it until the Data Protection Bill is enacted. That is open-ended because we do not know when the Bill will be released… We’ve stated that we won’t be doing this for a while. If the Bill allows it, the consequences will be very different.” Salve mentioned.
Salve also informed the Hon’ble Court that the Union Ministry of Electronics and Information Technology (MEITY) has communicated to WhatsApp that it believes the WhatsApp Privacy Policy violates the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (hereinafter referred to as “IT Rules, 2011”)
The Hon’ble division bench asked WhatsApp if it has a different policy or yardstick for Indian users than it does for European users, emphasizing that if data is taken and shared, it must be done with the consent of the users.
Salve told the Hon’ble court that no one can read end-to-end encrypted messages under the new policy, distinguishing between the challenge to the privacy policy and the challenge to the Competition Commission of India (hereinafter referred to as “CCI”) probe.
Senior lawyer Mukul Rohatgi, representing Facebook, contended that the CCI utilized its suo motu jurisdiction to open an investigation although no complaints had been filed.
“Suo moto jurisdiction is something that a body like CCI should use cautiously. The 2016 policy is already being scrutinized by the Supreme Court. The Hon’ble Delhi High Court is currently hearing three cases. Even if suo moto jurisdiction exists, the question is whether it can be used when superior constitutional courts are considering the policy “He inquired.
Aman Lekhi, appearing for the CCI, said that Facebook and WhatsApp’s arguments were in breach of the Competition Act, 2002 and that the policy’s non-implementation did not mean it was no longer in effect. He cited the judgement of the Hon’ble Delhi High court vacation bench. The Hon’ble Delhi High Court’s vacation bench of Hon’ble Justice Anup J Bhambhani and Justice Jasmeet Singh had already declined to stay the CCI’s investigation in an earlier order. During the previous hearing, Salve stated that the privacy policy is “not new” and “just an update” to the Hon’ble court.
The CCI’s investigation into the new policy was ordered after a preliminary finding that it breaches the Competition Act of 2000, particularly in terms of its terms on sharing individualized data with Facebook. The terms were described as “neither entirely transparent nor based on the particular, free assent of users” by the agency at the time.
The hearing has been adjourned until 30th July 2021 by the Hon’ble court.
